Hussani (Migration)

[2025] ARTA 1199

HUSSANI (MIGRATION) [2025] ARTA 1199 (2 JULY 2025)

DECISION AND  

REASONS FOR DECISION

Applicant:Mr Sayed Sekandar Hussani

Visa Applicants:  Mr Syed Namatullah
Mr Syed Ezatullah

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:  2116744

Tribunal:K. Raif

Place:Sydney

Date:2 July 2025

Decision:The Tribunal sets aside the decision under review with respect to the first named visa applicant and remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 101 (Child) visa:

· cl 101.213 of Schedule 2 to the Regulations; and

· cl. 101.221(2))(b) of Schedule 2 to the Regulations

The Tribunal affirms the decisions not to grant the second named visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 02 July 2025 at 12:42pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – study requirements – full-time study after completing high school – discrepancies in study histories, overlapping dates, repeat study, security situation and COVID closedown – verification checks – medical report – second applicant’s mental health not to level of incapacity – decision under review remitted for first applicant and affirmed for second applicant

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 101.213(1)(c), (2), 101.221(2)(b)

CASES
Hussain v MIBP [2017] FCCA 3247
Opoku-Ware v MIBP (2015) 297 FLR 416
Sok v MIMIA [2005] FMCA 190

STATEMENT OF REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 October 2021 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants are nationals of Pakistan, born in January 1997 and May 1995. They applied for the visas on 13 May 2020. The delegate refused to grant the visas on the basis that cl 101.213 was not met because the delegate was not satisfied the visa applicants met the study requirements. The sponsor (the review applicant) seeks review of the delegate’s decisions.

3. The review applicant appeared before the Tribunal on 1 May 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s partner Ms Bibi Mehtab. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages. The review applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration in relation to the first named visa applicant and affirmed in relation to the second named visa applicant.

   Relevant law

4. At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have only been made in respect of Subclass 101 (Child).

5. The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl 101.213. That provides that if, at the time of application, the visa applicant has turned 18, they need to meet certain requirements relating to relationships, work and study. These requirements must continue to be met at the time of decision: cl 101.221(2)(b).

6. At the time of application, the visa applicant must have, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification: cl 101.213(1)(c).

7. This provision appears to contemplate a single full-time course of study at a particular institution (such as a degree or a technical college qualification), although it might well extend to cover a qualification that is obtained from an institution or accreditation body upon satisfaction of a variety of criteria, some of which may be fulfilled by undertaking courses at alternative institutions: Sok v MIMIA [2005] FMCA 190 at [15]-[16]. In determining what is a ‘reasonable time’ for cl 101.213(1)(c), it is relevant to consider the surrounding circumstances including the actual time involved, what activities were undertaken during that time, the purpose for which those activities were undertaken and, if no relevant activities were undertaken, the reason why: Sok v MIMIA [2005] FMCA 190 at [19]. This requirement does not apply in the case of applicants who, at the time of making the application, were incapacitated for work due to the loss of bodily or mental functions: cl 101.213(2).

8. Where cl 101.213(1)(c) applies, it must continue to be met at the time of decision: cl 101.221(2)(b). For this purpose, the decision-maker must look at the time period from the commencement of study until the time of decision and ask whether, characterised as a whole, the visa applicant’s conduct in that period warrants the conclusion that they have been undertaking relevant study: Hussain v MIBP [2017] FCCA 3247. The visa applicant must also be studying at the time of decision: Opoku-Ware v MIBP (2015) 297 FLR 416.

   Syed Namatullah

   Primary decision

9. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that the visa applicant stated on the application form, when making the application, that he was not undertaking formal study. With respect to his past study, the visa applicant gave the following information.

   07/03 – 04/14                  secondary schooling New Madinatul Ilm Model High School

   07/14 – 04/16                  high school General Musa College

   02/14 – 04/20                  English, Pentagon Language Centre

   09/19 – 09/21           Bachelor, ZIST Institute of Science

10. The visa applicant provided a number of documents in support of his study, including academic results and letters of completion. These show that the visa applicant completed examinations for secondary schooling in April 2019 and he presented a letter from KB Science College confirming the visa applicant’s enrolment as a casual student.

11. In his statement, the visa applicant explained that he completed Year 10 in March 2014 and was not enrolled in the following year as he was preparing to enter college. In 2015 he completed Year 11 but failed the subjects and could not attend due to the security situation. He stayed at home in 2015-2016 and repeated Year 11 in 2016 and 2017 and Year 12 in 2018-2019, attending examinations in April 2019.

12. The visa applicant stated that he undertook English study between February 2014 and April 2020. From July 2017 to April 2019, he was enrolled at KB Science College. The visa applicant stated that he had not undertaken study from April 2019 due to Covid but hoped to resume his study.

13. The delegate found that the applicant turned 18 in January 2015 and was not engaged in studies between March 2015 and October 2018. The delegate noted that the applicant claimed he undertook Year 12 until April 2019 and also at KB Science College from July 2017 to April 2019, which would suggest that he was undertaking Year 12 and tertiary education simultaneously and the visa applicant failed to explain this discrepancy.

14. The delegate noted that the application was made in April 2020 and the applicant initially claimed on the application form that he completed Year 12 in April 2020 but also that he has not undertaken study since April 2019, which is consistent with the presented evidence. The delegate found that the applicant was not undertaking study at the time the application was made and the delegate also noted that despite the applicant’s claims that that his study was affected by COVID, he did not undertake any study since April 2019, before Covid started. The delegate also noted that the English study undertaken by the applicant did not lead to any formal qualification. The delegate concluded that the applicant did not meet cl. 101.213.

    Full-time study requirement

15. There is no evidence to indicate, and the review applicant does not claim, that the visa applicant was incapacitated for work due to the total or partial loss of bodily or mental functions. The Tribunal finds that the visa applicant was over the age of 18 when the application was made. The Tribunal finds that the visa applicant must meet the study requirements in cl. 101.213(2).

16. In his submission to the Tribunal of 24 April 2025 the review applicant confirmed that the visa applicant had been actively enrolled in a Bachelor of Arts at General Muhammad Musa College from October 2016 to February 2019. The review applicant stated that there was a ‘short gap’ in the visa applicant’s study between October 2020 and December 2021 when the educational activities were suspended due to Covid. 

17. The review applicant states that although the visa applicant had already completed his intermediate degree in 2015, he enrolled in another degree in ZIST as he obtained low marks previously. Once he re-sat and passed the Year 12 examinations, he was able to enrol in a further course where he is presently studying. The review applicant provided a number of documents to evidence the visa applicant’s enrolment, including mark sheets and statements from General Muhammad Musa Postgraduate College dated April 2022 and April 2025 confirming the visa applicant’s enrolment in a science course between 2021 and 2025. The visa applicant also provided a statement outlining his past study history and his dependence on the sponsor and addressing the delegate’s findings.

18. In oral evidence the review applicant stated that he does not have much information, or understanding about the visa applicant’s study. He stated that the visa applicant is undertaking a full-time course at General Musa College and attends 5 days a week, full days (including self-study in the library) but he did not have other information. The review applicant stated that the situation in Pakistan is unsafe and that may be the reason the course takes a long time to complete.

19. The review applicant stated that after finishing high school and before commencing the Arts course, the visa applicant did some study at ZIST but he was not familiar with the course. Evidence of that study was provided with the application. The Tribunal discussed with the review applicant the fact that when the application was made, the visa applicant stated on the application form that he was not studying when the application was made. The review applicant’s representative submits that the paperwork was prepared by someone else and may be inaccurate. The representative notes that the visa applicant provided to the delegate evidence of his study and the Tribunal acknowledges that the application was accompanied by a copy of the visa applicant’s Student card from ZIST which refers to the course running from August 2019 to 2021.

20. In his submission to the Tribunal of 8 May 2025 the review applicant provided further confirmation of this visa applicant’s study. The review applicant claims the visa applicant completed the following study

    07/02 – 03/14             secondary schooling, Modinat Ul Ilm School
    07/14 – 10/16             Fundamental of Science, General Mussa College
    10/16 – 10/18             BA General Mussa College (failed)
    10/18 – 10/20             FA Zist Institute
    10/20 – 11/21             break due to Covid
    11/21 – current           BS Mussa College

21. In his statement, the visa applicant stated that he completed secondary schooling in 2014 and studied Fundamental of Science until 2016, which is equivalent to Grade 12. As his marks were very low, he was not eligible to enter the Bachelor of Science course and decided to enrol in a Bachelor of Arts. In 2018 he failed the exams and was not eligible for admission for further studies unless he repeated the higher secondary exams and obtained better marks. The applicant states that he re-enrolled in FA (higher secondary school certificate) at ZIST where he studied between October 2018 and October 2020 and after achieving a better result, he was eligible to enrol in a science course where he has been studying since November 2021. The review applicant provided with his submission a number of documents evidencing his son’s enrolments and study.

22. The Tribunal is mindful that the present evidence concerning the visa applicant’s study appears to be inconsistent with the information that was submitted with the primary application. In particular, on Form 80 the visa applicant stated that he completed the Bachelor of Arts in October 2018 and commenced a Science degree at Zist in September 2019. The visa applicant did not claim formal study between October 2018 and September 2019 except an English course at Pentagon Academy.

23. Given these discrepancies, the Tribunal sought verification of the visa applicant’s enrolment documents with the assistance of the overseas post. On 27 June 2025 the Tribunal received the following advice from the overseas post.

    a.ZIST College confirmed the visa applicant’s enrolment between October 2018 and October 2020.

    b.General Musa College confirmed the visa applicant’s enrolment.  

24. Having regard to the documentary evidence presented by the review applicant and the results of the verification, the Tribunal is satisfied that the visa applicant undertook the study as claimed in his evidence to the Tribunal, that is, that the visa applicant had continuously engaged in studies from the time he completed secondary schooling until the time of this decision, with a break of about 13 months in 2020 – 2021.  The Tribunal accepts that this break was the result of the limitations due to Covid when the educational institutions would have been closed and the Tribunal accepts that the applicant may not have been able to engage in formal study in that period.

25. The Tribunal is satisfied that this visa applicant had been undertaking full-time study since turning 18, or within 6 months (or a reasonable time) after completing year 12. The Tribunal finds that the visa applicant met that requirement at the time the application was made and continues to meet this requirement, and is still studying, at the time of decision. Accordingly, cl 101.213(1)(c) was met and continues to be met at the time of decision for the purpose of cl. 101.221(2)(b).

    Syed Ezatullah

    Primary decision

26. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that the visa applicant stated on the application form that, when making the application, he was not undertaking formal study. With respect to his past study, the visa applicant gave the following information.

    7/03 – 4/14secondary schooling New Madinatul Ilm Model High School

    07/14 – 04/16           high school General Musa College

    2/14 – 4/20English, Pentagon Language Centre

    07/17 – 04/20          KB College Faculty of Arts

27. The visa applicant provided a number of documents in support of his study, including academic results and letters of completion. These show that the applicant completed het examinations for secondary schooling in April 2019 and a letter from KB Science College confirming the applicant’s enrolment as a casual student. There is also a copy of a Student card from ZIST Institute of Science and Technology referring to the visa applicant’s enrolment between August 2019 and May 2020.

28. In his statement, the visa applicant explained that he completed Year 10 in March 2014 and was not enrolled in the following year as he was preparing to enter college. In 2015 he completed Yar 11 but failed the subjects and could not attend due to the security situation. He stayed at home in 2015-2016 and repeated Year 11 in 2016 and 2017 and Year 12 in 2018-2019, attending examinations in April 2019.

29. The visa applicant stated that he undertook English study between February 2014 and April 2020. From July 2017 to April 2019 he was enrolled at KB Science College. The visa applicant stated that he had not undertaken study from April 2019 due to Covid but hoped to resume his study.

30. The delegate found that the applicant turned 18 in January 2015 and was not engaged in studies between March 2015 and October 2018. The delegate noted that the applicant claimed he undertook Year 12 until April 2019 and also at KB Science College from July 2017 to April 2019, which would suggest that he was undertaking Year 12 and tertiary education simultaneously and the visa applicant failed to explain this discrepancy.

31. The delegate noted that the application was made in April 2020 and the applicant initially claimed on the application form that he completed Year 12 in April 2020 but also that he has not undertaken study since April 2019, which is consistent with the presented evidence. The delegate found that the applicant was not undertaking study at the time the application was made and the delegate also noted that despite the applicant’s claims that his study was affected by COVID, he did not undertake any study since April 2019, before Covid started. The delegate also noted that the English study undertaken by the applicant did not lead to any formal qualification. The delegate concluded that the applicant did not meet cl. 101.213.

    Incapacity for work

32. In his submission to the Tribunal of 24 April 2025  the review applicant claims this visa applicant is a member of his family unit and a dependent child. The review applicant submits that the visa applicant suffers from a mental health condition (as corroborated by a psychologist’s report) and is unfit for work due to total or partial loss of bodily or mental functions. The Tribunal acknowledges these submissions but has not accessed the issue of dependence, given that it was not addressed by the delegate.

33. In oral evidence the review applicant stated that the visa always stays at home and does not engage in anything. Initially they did not realise his condition but later they had sought advice from a doctor.

34. The Tribunal has considered whether the visa applicant is incapacitated for work due to the total or partial loss of bodily or mental functions. The review applicant refers to the visa applicant’s poor mental health and vulnerability. The review applicant states that the visa applicant lives in danger of being harmed and of discrimination because of his mental health. The review applicant refers to the situation of Hazaras in Pakistan and lack of adequate mental health care.

35. The review applicant provided a medical report relating to the visa applicant dated 23 April 2025. Dr Mandokhail states that the visa applicant has been under his care since 2021 and is dependent on his parents for his emotional and psychological needs. Dr Mandokhail states that the visa applicant has been diagnosed with depression and anxiety in 2021 and prescribed medication. There is also a declaration from Ms Mehtab Bibi who refers to the visa applicant’s condition and what she believed caused it (as well as evidence relating to her own condition).

36. In oral evidence the review applicant that that his son does not want to leave the house and is concerned about his safety. On one occasion he had fainted and went to see a doctor around 2021. He was diagnosed with depression. The review applicant stated that his son has not been prescribed any medication because the doctor did not believe the visa applicant’s condition was too serious and did not require medication or treatment. The review applicant told the Tribunal that the visa applicant had not seen that doctor since 2021 and only saw the doctor recently to get the report.

37. The Tribunal acknowledges the evidence of Dr Mandokhail but finds it inadequate. Firstly, the review applicant’s evidence is that his son saw the doctor in 2021 and not since that time. Dr Mandokhail’s report, which indicates that the visa applicant has been under his observation since 2021 (which implies ongoing treatment), is inaccurate as the doctor has not seen, nor treated, the visa applicant since 2021. The Tribunal does not consider Dr Mandokhail’s assessment of the visa applicant’s condition to be necessarily accurate in circumstances where he has had no contact with the visa applicant since 2021. Secondly, the review applicant’s evidence is that in 2021 the doctor did not consider the visa applicant’s condition was such that he required medication or treatment. The review applicant repeatedly told the Tribunal that the doctor told them not to put pressure on the visa applicant about study but there is no suggestion that any treatment has been prescribed. In the Tribunal’s view, that does not support a claim that the visa applicant is incapacitated for work due to total or partial loss of bodily or mental functions.

1. Even if the visa applicant does suffer from depression and anxiety, that does not necessarily mean that he has a total or partial loss of bodily or mental function or that he is incapacitated to work due to such loss. It is certainly not the case that every person who experiences depression or anxiety is incapacitated for work and the review applicant’s evidence suggests that the visa applicant’s condition was not assessed as being so serious by the doctor as requiring further observation or treatment. In the Tribunal’s view, the presented evidence does not establish the visa applicant’s incapacity to work.

2. The Tribunal also notes that Dr Mandokhail in his report indicates that the visa applicant has been under observation since 2021. There is nothing in that report to indicate that the visa applicant had been incapacitated for work at the time the application was made, which is the requirement in cl. 101.213(2) and the review applicant told the Tribunal that his son did not see a doctor before 2021 and only saw the doctor due to a fainting incident. The Tribunal also considers it significant that when the application was made, there was no mention of the visa applicant’s incapacity. In the Tribunal’s view, if such incapacity was in existence, it would have been mentioned when the application was made.

3. Having regard to the totality of the evidence before it, the Tribunal is not satisfied that at the time of making the application, the visa applicant, Syed Ezatullah was a dependent child within the meaning of subparagraph (b)(ii) of the definition of ‘dependent child’. The Tribunal finds that the visa applicant was over the age of 18 when the application was made. The Tribunal finds that the visa applicant must meet the study requirements in cl. 101.213(2).

   Full-time study

4. In oral evidence the review applicant stated that his son was affected by 2014 bombing and has not been able to study. He has been attending irregularly. In oral evidence, the review applicant confirmed that the visa applicant last engaged in regular full-time study in 2014 and since that time he did some courses but irregularly and for short periods only.

5. Having regard to that evidence, the Tribunal finds that this visa applicant is not engaged in full-time study at the time of this decision. The Tribunal is also not satisfied that the visa applicant engaged in full-time study leading to a formal qualification since 2014. While he attended study on an irregular basis, that was not on a full-time basis. The review applicant’s evidence is that his son mainly stays at home as he is too scared to leave the house. The Tribunal is not satisfied he engaged in activities relevant to study and, having rejected the review applicant’s claim of the visa applicant’s incapacity, the Tribunal is not satisfied the visa applicant was prevented from engaging in studies in that period.

6. The Tribunal is not satisfied that this visa applicant had, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification. The Tribunal finds that  Syed Ezatullah does not meet cl 101.213(1)(c) and cl. 101.221.

7. There is no suggestion that Syed Ezatullah is an adopted child and since he was over the age of 18 at time of application, he cannot meet the requirements for the grant of the Orphan Relative visa.

8. The visa applicants’ mother Ms Mehtab spoke about the hardship of being separated from her children and the effect on her physical and mental health. The review applicant also refers to compassionate and compelling circumstances and lack of safety for his children.  The Tribunal accepts that evidence but cannot recommend the grant of the visa on humanitarian grounds. Having found that Syed Ezatullah does not meet the requirements for the grant of the visa, the Tribunal must affirm the decision under review.

   Conclusion

9. For the reasons above, the criteria for the grant of a Subclass 101 visa are met by the first named visa applicant but are not met by the second named visa applicant. There have been no claims advanced in respect of the other visa subclasses in Class AH (Subclass 102 and Subclass 117) by the second named applicant.

   DECISION

10. The Tribunal sets aside the decision under review with respect to the first named visa applicant and remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 101 (Child) visa:

    ·cl 101.213 of Schedule 2 to the Regulations; and

    ·cl. 101.221(2))(b) of Schedule 2 to the Regulations

11. The Tribunal affirms the decisions not to grant the second named visa applicant a Child (Migrant) (Class AH) visa

    Date(s) of hearing  1 May 2025

    Representative for the Applicant:           Mr Ramzan Ali